356 F.

3d 191

UNITED STATES of America, Appellee,

v.
Andy E. MASLIN, Defendant-Appellant.
Docket No. 02-1648.

United States Court of Appeals, Second Circuit.

Argued: September 12, 2003.
Decided: January 13, 2004.

Appeal from the United States District Court for the Northern District of
New York, Frederick J. Scullin, Jr., Chief Judge.

Barbara D. Cottrell, Senior Litigation Counsel, Albany, New York on behalf of

Glenn T. Suddaby, United States Attorney, Northern District of New York
(Grant C. Jaquith, Assistant United States Attorney, on the brief), for Appellee.

Bruce R. Bryan, Syracuse, New York, for Defendant-Appellant.

Before: CABRANES and PARKER, Circuit Judges, and RAKOFF, District

Judge.*
RAKOFF, District Judge:

On May 10, 1999, a federal grand jury in Binghamton, New York returned a
superseding indictment that charged Andy E. Maslin and 27 others with a single
count of conspiracy to distribute marijuana. The "bare-bones" indictment
charged that:

Between in and about January of 1997, through and including up to the date of
this Indictment, in the Northern District of New York and elsewhere, the
defendants [list of names] did unlawfully, knowingly and intentionally
combine, conspire, confederate and agree with each other and with others, both
known and unknown to the grand jury, for the purpose of knowingly and
intentionally possessing with intent to distribute and distributing a controlled

substance, to wit, marihuana [sic], a Schedule I controlled substance, in

violation of Title 21, U.S.C., Section 841(a)(1).
6

Of the 28 named defendants, only Maslin went to trial. In his opening

statement, the prosecutor explained that what was charged was a far-flung
conspiracy involving the distribution of high grade marijuana obtained from the
Indian reservation area in northern New York and Canada and lower grade
marijuana obtained from other locales throughout the United States and from
Mexico. As for Maslin, his role in the conspiracy was that of a marijuana
"broker," who both bought and sold marijuana and made a profit from the
difference in price:

The evidence will show that Mr. Maslin in that broker capacity also would get
people together to the buyer and seller....

What did Mr. Maslin get out it? We are going to prove Mr. Maslin got a
broker's fee. He got money out of it....

He did it to make money and we will prove to you that he made very good
money selling marijuana. Sometimes upwards of $1,000 per pound. So that he
would obtain the marijuana from the northern section of New York, from the
Indian reservations, marijuana called hydro....

10

He would then turn around and sell that marijuana to whom? To people like
Mr. Ken Howe, Junior. People like Mr. Daniel Pryor. Other people.

11

Mr. Maslin also, in addition to providing high grade quality marijuana to

people, would purchase middle and low grade marijuana. From where? From
Mr. Ken Howe, Junior. Where did Mr. Ken Howe, Junior get the marijuana?
From Texas. From across the border down into the Mexico area.

12

The Government said it would prove all this in various ways:

13

So you're not only going to hear it on tape, you're not only going to hear it from
surveillance teams who made observations, you're not only going to hear it
from other marijuana dealers, conspirators in this case, Mr. Howe and Mr.
Pyror [sic], you're going to hear it from Mr. Maslin's own words.

14

The reference to Maslin's "own words" was to statements he had made to FBI
Special Agent John Bokal in pre-trial proffer sessions that, under the terms of

the unusual proffer agreement then in use in the Binghamton Division of the
United States Attorney's Office, were admissible against him at trial even if he
did not take the stand or otherwise "open the door." Previewing Agent Bokal's
testimony, the prosecutor stated:
15

Agent Bokal will tell you how Mr. Maslin told him about the hydro,
hydroponic marijuana. Where he got it from. Where he was selling it. For how
much.

16

The trial itself lasted three days, with the Government's proof largely mirroring
its opening statement. First, Agent Bokal testified to Maslin's statements, in
which Maslin confessed in some detail to having procured from various coconspirators (including Peter Clute, Al Jacobs, and Rocky Skidders) large
quantities of marijuana coming from the north, as well as some small quantities
of cocaine. For example:

17

[Maslin] told me about an individual by the name of Al Jacobs and Mr. Maslin
stated to me that he and Al Jacobs had transported thousands and thousands of
pounds of marijuana that the two of them had obtained from the Hells Angels in
Canada and brought it to Cornwell Island. Mr. Maslin told me that some of the
Hells Angels that Mr. Jacobs dealt with were identified as Hydro, Red Beard
and possibly Red Horse. Mr. Maslin also admitted to me that an individual by
the name of Rocky Skidders was also supplied marijuana by these individuals.
Mr. Maslin also admitted to me that over the past three or four months he had
been obtaining cocaine from an individual identified as Peter Clute. Mr. Maslin
also admitted to me that he obtained marijuana from Mr. Clute.... Mr. Maslin
told me that Mr. Clute had provided him with between 50 and 200 pounds of
marijuana.

18

Next, a co-conspirator, Kenneth Howe, testified that Maslin supplied him with
hydroponic marijuana that came "off the Indian reservation and across
Canada." Howe also testified about a March 14, 1999 transaction in which
Maslin brought hydroponic marijuana to a diner for distribution to Howe, who
then give it to one Jack Godoy to resell.

19

A second co-conspirator, Daniel Pryor, similarly testified to purchasing

hydroponic marijuana from Maslin on a number of occasions, some of it
coming "[f]rom the [Indian] reservation up there in Massena."

20

Finally, a surveillance officer, Alvin Olson, testified that his investigation had
targeted marijuana sales at "the Mohawk Indian reservation" in Massena, New

York and that he had overheard Maslin purchasing hydroponic marijuana.

Wiretapped conversations evidenced Maslin's involvement in the procurement
of such marijuana.
21

These witnesses and tapes also provided information about Maslin's

distribution of the hydroponic marijuana to various locales as well as his
purchase and distribution of lower grade marijuana originating in other
geographic regions. Overall, the proof portrayed a loosely-knit operation whose
common connection was Maslin's role as broker.

22

On summation, the Government once again described a generalized marijuana

conspiracy, with Maslin, the broker, purchasing hydroponic marijuana from the
Indian reservation in the "north country" and reselling it in places like New
York City, while purchasing low-grade marijuana elsewhere to be resold in the
north country:

23

They're being charged with being members of a conspiracy. Conspiracy to do

what? Make money, sell and distributing, providing marijuana and in doing
that, they have common goals and they have things that they do together to
achieve those common goals. And where is that shown in the evidence? It's
shown when Mr. Maslin and Mr. Howe are discussing about providing
marijuana, hydro marijuana to New York City.

******
24
25

Mr. Howe provides Mr. Maslin with middle grade, low grade marijuana. For
what purpose? So that he and Mr. Maslin can make money. Mr. Maslin sells
that low to middle grade marijuana up north in the north country. Vice versa.
Mr. Maslin has access to hydroponic marijuana. High grade marijuana. They're
making deals on both ends of the spectrum. On both sides of high grade
marijuana, low grade marijuana.

26

After receiving the district court's instructions setting forth the elements of
conspiracy in the same "bare-bones" manner as the indictment, the jury
returned a verdict on March 9, 2000, convicting Maslin of the single count of
conspiracy to distribute marijuana. Maslin appealed his conviction on the
ground, inter alia, that the Government had actually proved multiple
conspiracies rather than a single conspiracy, but the conviction was affirmed in
a summary opinion that did not discuss this issue.

27

Meanwhile, very shortly after Maslin was first indicted in Binghamton, another

federal grand jury in the Northern District of New York, this one in Albany,
indicted him and four others on June 17, 1999 on another charge of narcotics
conspiracy. As set forth in a superseding indictment eventually filed on
February 22, 2001, the charge was that:
28

From about 1995, up to and including on or about June 8, 1999 in the Northern
District of New York and elsewhere, the defendants, JOHN R. SKIDDERS,
a/k/a Rocky,1 ANDY E. MASLIN, and STEVEN MARTIN, did knowingly and
intentionally combine, conspire, confederate, and agree together with each
other, Peter Clute, Paul C. Kennedy, and Sherry L. Kennedy, and with others
known and unknown to the grand jury, to possess with intent to distribute and
distribute cocaine, a Schedule II controlled substance, and marijuana, a
Schedule I controlled substance, in violation of Title 21, United States Code,
Section 841(a)(1).

29

Although the Albany indictment was only slightly more particularized than the
indictment in the Binghamton case, the Albany indictment appeared to describe
a conspiracy that was different from that described in the Binghamton
indictment in three respects: (i) it began in 1995, rather than 1997; (ii) it
involved cocaine as well as marijuana; and (iii) it involved different named
defendants, with Maslin being the only defendant named in both indictments.
On these bases, as well on the district court's understanding that "the two
conspiracies operated in distinct geographical areas," United States v. Maslin,
No. 1:99-CR-303, Memorandum Decision and Order at 9 (N.D.N.Y. Dec. 20,
2001), the district court denied a pretrial motion to dismiss the indictment on
double jeopardy grounds.

30

In the four-day trial that followed, however, much of the proof mirrored the
proof presented in the Binghamton case. Thus, Police Investigator Olson and
Agent Bokal essentially repeated much of the testimony they had given in the
Binghamton trial. Indeed, so far as co-conspirators Clute and Jacobs were
concerned, Bokal gave testimony almost verbatim identical to that which he
had given at the first trial:

31

Mr. Maslin told me that for the two or three months prior to his arrest, he had
purchased approximately 3 to 4 ounces of cocaine from Mr. Clute. He also told
me that he had purchased between 50 and 300 pounds of marijuana from Mr.
Clute.

******
32
33

Mr. Maslin told me that he and Al Jacobs were responsible for distributing

33

Mr. Maslin told me that he and Al Jacobs were responsible for distributing
thousands and thousands of pounds of marijuana. Mr. Maslin told me that Mr.
Jacobs had a connection with the Hell's Angels in Canada and that he would
make the arrangements for the deliveries. Mr. Maslin told me that he and Al
Jacobs would smuggle between 40 and 100 pounds of marijuana per trip from
Canada into Cornwall Island.

34

A different cooperating co-conspirator, Peter Clute, testified at the Albany trial

than the co-conspirators, Howe and Pryor, who had testified in the Binghamton
trial. However, the basic conspiratorial outline set out in Clute's testimony did
not substantively differ from that presented in the Binghamton trial, the gist of
it being that during the years 1998-1999, Maslin, the broker, purchased from
Clute and other intermediaries, for distribution elsewhere, large quantities of
hydroponic marijuana obtained from the north.

35

Given the proof, the Government, on summation, essentially conceded that the
conspiracy on which the jury was being asked to focus did not embrace the
period 1995-1999 referenced in the indictment, but instead, "the time frame that
we're dealing with in this case is approximately one year, from '98 to '99,
ending on June 8th of 1999, when Peter Clute and the defendant were arrested."

36

The Government further admitted that the amount of cocaine, if at all, was
trivial and not the main thrust of the Government's theory:

37

[T]he indictment charges that the entire conspiracy involved 5 or more

kilograms of cocaine....

38

But this defendant did not participate in the cocaine aspect of the conspiracy to
that degree, and so that part of the indictment doesn't apply to the defendant, as
indicated to you at the beginning of the case, and has been dismissed as to him
at this point.

******
39
40

The principal object of the conspiracy, of course, that the defendant's part of it,
his participation with Peter Clute and Junior and Al, was the distribution of
marijuana.

41

Further still, while the named defendants in the two cases were different, there
was a substantial overlap of prominent co-conspirators in the two cases, such as
Peter Clute, Al Jacobs, and Rocky Skidders, each of whom, as already noted,
were identified as primary sources of Maslin's marijuana in both cases.

42

Lastly, while the testimony and arguments in the Albany case focused
primarily on the obtaining of hydroponic marijuana from the north, they did so
by way of describing essentially the same operations that had formed that
aspect of the conspiracy set forth in the Binghamton case. Moreover, even in
the Albany case, Maslin was described as a broker who bought and sold
marijuana "all over the United States."

43

On January 31, 2002, Maslin (who represented himself pro se at the second
trial) was duly convicted of the single conspiracy charge against him. On
February 8, 2002, following the adverse verdict, Maslin's stand-by counsel filed
a request for reconsideration of the double jeopardy motion, but this was denied
on April 29, 2002. On October 16, 2002, Maslin was sentenced to a term of 78
months, to run concurrently with Maslin's 60-month sentence from the first
case. It is from the second conviction that the instant appeal is taken.

44

On appeal, we review the double jeopardy issue de novo. United States v.

Estrada, 320 F.3d 173, 180 (2d Cir.2003). Since the two conspiracies of which
Maslin was convicted are identical in their legal elements, the question is
whether they involve factually distinct conspiracies. Id. at 180; United States v.
Nersesian, 824 F.2d 1294, 1319 (2d Cir.1987). In so determining, "no dominant
factor or single touchstone determines" whether two conspiracies are the same.
United States v. Macchia, 35 F.3d 662, 668 (2d Cir. 1994). In United States v.
Korfant, 771 F.2d 660, 662 (2d Cir.1985), this Court suggested some factors
that might typically be relevant such as the similarity of the criminal
offenses charged in successive indictments, the overlap of participants, the
overlap of time, the similarity of operation, the existence of common overt acts,
the geographic scope of the alleged conspiracies or locations where overt acts
occurred, common objectives, and the degree of interdependence between the
alleged conspiracies. But the Korfant list is not exhaustive, and every case must
be assessed on its own terms to determine whether or not, based on the entire
record, the second prosecution is for the same or for a different crime than the
first. See Macchia, 35 F.3d at 668.

45

Here, even if one focuses only on the Korfant factors, one must conclude that
the two conspiracies, as they were actually presented at trial, were substantially
the same. Thus, although the indictments purport to charge factually different
conspiracies, the nominal differences of time, place, and scope were, as noted
above, largely abandoned at trial. While the participants were somewhat
different, Maslin's connections to Clute, Jacobs, and Skidders as his largest
suppliers of hydroponic marijuana were prominently featured in both trials. As
for time, by the end of the second trial, the Government had expressly
abandoned any meaningful claim of different timing between the two

conspiracies. As to operation, the two conspiracies, and especially Maslin's key

role as broker, were largely identical in the two cases, as were the distribution
chains of the valuable hydroponic marijuana from the north country. The overt
acts, while not all identical, included many prominent ones, such as those
described by Agent Bokal, that were identical down to their very description.
The geographic scope, both generally (nationwide) and particularly (focused on
the "north country") was essentially the same.2 Once the cocaine reference was
effectively abandoned, the objectives were likewise identical. Finally, as to
interdependence, since what was ultimately proven was one common
conspiracy, this factor is irrelevant.
46

There are, moreover, several additional factors here, not directly addressed in
Korfant, that further point toward a finding of double jeopardy. These include
the fact that the Government, in its opening and closing arguments, presented
both cases to the jury as broad conspiracies of an essentially identical nature;
that the district judges in both cases made no effort to define the charged
conspiracies beyond the bare elements; that the two essentially unimpeachable
witnesses, Olson and Bokal, gave essentially identical testimony at both trials;
that the most damning evidence Maslin's own admissions was identical
at the two trials; and that a central focus of most of the co-conspirator testimony
at both trials was the supply of hydroponic marijuana from Canada through the
Indian reservation to Maslin, who then distributed it nationwide.

47

In the end, in the circumstances presented here, the Government cannot have it
both ways. Having charged and proven in the Binghamton case a broad (and
somewhat elastic) conspiracy embracing virtually the totality of Maslin's
marijuana brokerage activities and very prominently his brokerage activities
involving hydroponic marijuana brought in from the north it is hardly in a
position to claim that the Albany case, alleged in equally broad terms but
focusing more exclusively on the north-originating hydroponic marijuana
activity, is a separate conspiracy. Taken together, we are left with the firm
conclusion that any alleged differences between the two charges, as those
conspiracies were actually presented to the jury, pale in comparison with their
substantial identity, and that Maslin was therefore twice put in jeopardy for the
same offense.

48

Accordingly, we reverse Maslin's conviction.

Notes:

The Honorable Jed S. Rakoff, United States District Judge for the Southern
District of New York, sitting by designation

This was the same "Rocky Skidders" as to whose dealings with Maslin Agent
Bokal had testified at the Binghamton trial,see supra.

Although the district court, in denying the double jeopardy motion prior to the
Albany trial, stated that the conspiracy charged in the Binghamton case
"centered in the Binghamton area" while that charged in the Albany case
"centered in the [Indian reservation] area of Akwesasne, which straddles the
border between the United States and Canada," in actuality, the proof at both
trials, as noted above, described a nationwide marijuana distribution system
brokered by Maslin, with hydroponic marijuana being obtained from the north
country and distributed elsewhere. That the Binghamton case included more
proof about the additional sales of lower grade marijuana from the south does
not make it a separate conspiracy